On September 26, 1995, appellant was tried
by a military judge sitting alone as a general court-martial at Scott Air
Force Base, Illinois. Consistent with her pleas, she was found guilty of
absence without leave for approximately 1 month in violation of Article
86, Uniform Code of Military Justice, 10 USC § 886. She was
then sentenced to a dismissal, which the convening authority approved on
November 1, 1995. On June 11, 1996, the Court of Criminal Appeals affirmed
appellant’s conviction in a short per curiam opinion.

On March 26, 1997, we granted review of the
following issue:

WHETHER THE MILITARY JUDGE FAILED TO ADEQUATELY
EXCLUDE THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE TO APPELLANT’S
ABSENCE WITHOUT AUTHORITY AND THEREBY RENDERED IMPROVIDENT APPELLANT’S
PLEAS OF GUILTY TO THAT OFFENSE.

We hold that the military judge did not err
in accepting appellant’s pleas of guilty to this offense. SeeUnited
States v. Smith, 44 MJ 387, 392 (1996).

The record of trial shows that appellant pleaded
guilty to a single specification of unauthorized absence from December
19, 1994, to January 23, 1995. A stipulation of fact was agreed to by appellant.
It states, in pertinent part:

2. The Accused was absent from her duty section
from on or about 19 December 1994 until on or about 23 January 1995. The
Accused’s duty section was Ward 5B, Building 1530, Scott AFB, Illinois.
The Accused had a duty to be at her duty section on 19 December 1994. The
Accused knew of this duty to be present at her duty section.

3. The Accused’s absence from her duty section
was without authority. On 19 December 1994, at approximately 0800 hours,
the Accused telephoned her supervisor, Lt Col Chesnick, and complained
of extreme stress and asked to file sexual harassment charges. Lt Col Chesnick
told the Accused to report to work several times and told the Accused they
would discuss the sexual harassment charge as soon as she reported for
duty. The Accused called back at approximately 0810 hours and asked for
regular or emergency leave. Lt Col Chesnick denied this request.

4. The Accused believed she was being sexually
harassed at work. The Accused believed this harassment went beyond the
duty section into her own home. The Accused filed an Inspector General
(IG) complaint concerning this sexual harassment but the investigation
concluded there was no evidence of sexual harassment. The Accused suffers
from and has been diagnosed by military and civilian mental health officials
as having the Axis I personality disorders of Major Depression and Adjustment
Disorder with Anxiety.

5. During the Accused’s absence she traveled
to her home town of Billings, Montana. Once there she sought out civilian
psychiatrists to help her cope with her stress and anxiety. As a result
of these counseling sessions, she was prescribed anti-depressant and anti-anxiety
medications.

6. The Accused returned to Scott AFB and voluntarily
surrendered herself to military authority on 23 January 1995. She was immediately
placed into pretrial confinement and kept in confinement until 3 April
1995.

The record of trial also shows that the military
judge questioned appellant about her sexual harassment claim. It contains
the following discussion between the military judge, appellant, and defense
counsel:

MJ: The Stipulation also states that on the
19th of December 1994, at about eight o’clock in the morning,
you telephoned your supervisor, Lt Colonel Chesnick, and complained of
extreme stress and asked to file sexual harassment charges--is that correct?

ACC: Yes, sir.

MJ: Okay, and that Lt Colonel Chesnick told
you to report to work several times, and then told you that the two of
you would discuss the sexual harassment charge as soon as you reported
to duty--is that correct?

ACC: Yes, it is.

MJ: Now Lt Colonel Chesnick was the charge
nurse?

ACC: Yes.

MJ: And your immediate supervisor?

ACC: No, Captain, Major Hinton was my immediate
supervisor.

MJ: Okay, and then Lt Colonel Chesnick was
the----

ACC: The Chief of Medical Operations Squadron.

MJ: Okay. The Stipulation then states that
you called back at approximately 0810 hours and asked for regular or emergency
leave. Did you do that?

ACC: Yes, sir.

MJ: And that Lt Colonel Chesnick denied this
request. Did she do that?

ACC: Yes.

MJ: Okay. Now, paragraph four of the Stipulation
of Fact tells the court that you believed you were being sexually harassed
at work--is that correct?

ACC: Yes, sir.

MJ: And that you believed this harassment
went beyond the duty section into your own home. Is that also correct?

ACC: Yes, sir.

MJ: Okay. And that you had filed an IG complaint
concerning this sexual harassment, but the investigation concluded there
was no evidence of sexual harassment. And the Stipulation then tells
the court that you suffer from, and have been diagnosed by military and
civilian mental health officials, as having the Axis I personality disorders
of major depression and adjustment disorder with anxiety--is that correct?

DC: Yes, Your Honor, including the defenses
of sanity, duress, and impossibility. We have researched it,
and discussed these thoroughly with our client.

MJ: Okay. And, then, your investigation
has not revealed any facts which might give rise to such a defense in the
case?

DC: That is correct, Your Honor.

(Emphasis added.)

Later in the trial, appellant made an unsworn
statement to the trial judge. She said, inter alia:

Going AWOL was wrong, but a punitive discharge
will be very detrimental in obtaining employment. I left because I just
could not take it anymore. My work place was a very stressful environment
for me. I was being sexually harassed at my job. I realize that the IG
investigator did not agree with this allegation, but the investigator did
not interview my children who knew about the stress and harassment that
I was having to put up with.

I strongly feel that I was sexually harassed.
I was constantly approached by my supervisor, who was a major, and also
a married lieutenant and an enlisted co-worker asking me for dates. I refused
to go out with any of them. This made it very difficult for me at work.

I told my supervisor that I was having a very
difficult time coping with the stress of my work environment, but she ordered
me back to patient care. I could not understand this because I told her
that I was not mentally able to cope with patients. She repeatedly told
me to go to mental health. I refused because I was extremely distressed
with the mental health here on base. I was finally ordered and escorted
to mental health.

MJ: Very well. Prior to inviting argument from
counsel, I do have a couple of questions I would like to ask of the defense
counsel. I’ve heard the accused’s unsworn statement, and she has read it
to me, and obviously it has been prepared, and I would be correct in presuming
that you’ve seen that statement since it has been prepared prior to this,
but--and I’m not going to question the accused about her unsworn statement.

But now earlier, Captain Durkis, you assured
the court, as did Captain Shestko, but I believe it was you who orally
assured the court, that both had thoroughly researched and investigated
all aspects of the case and that your investigation had revealed no affirmative
defenses to this case. I inquired specifically as to mental responsibility.
In fact, Prosecution Exhibit Number 2 has been admitted that clearly shows
the accused is mentally responsible and was at the time of the commission
of the offense and through her absence.

But you also, I believe, assured me that
you thoroughly looked into all areas of the case, including duress----

DC: Duress and impossibility, yes, sir.

MJ: ----and impossibility, and you determined
that it did not exist.

DC: That is correct, sir. The affirmative defense
of duress would have required a. . . .

MJ: Very well. So the accused was not trying
to tell me that she was so sexually harassed as to constitute an impossibility
defense or. . . .

DC: That’s right, Your Honor. It did not
raise (sic) to a level where she feared for her life or the life of her
children or for personal physical harm. That’s correct.

MJ: Captain Shestko?

IDC: Yes, Your Honor. We have researched this
issue. We’ve spent a lot of time on this. That was one reason why, back
on the 25th of July or so when this court was initially set
for the 5th of August, that the defense requested a delay until
the 26th of September, so that Captain Durkis and I would have
more time to consult with Lieutenant Biscoe and to do the research in this
area.

After extensive research, we felt that the
mitigation and extenuation in this case did not raise (sic) to the level
of an affirmative defense.

MJ: Very well. And it’s your position, then,
that the matters that the accused has just advised me of in her unsworn
statement would not affect the providence of the pleas?

IDC: That’s correct, Your Honor. I do believe
that those were things that should be brought before this court, but simply
as mitigation and extenuation and not in any way [to] contradict the Stipulation
of Fact or the plea itself.

MJ: Well, there are several cases, although
not many, but a couple of cases, I believe, where one who has suffered
from sexual harassment to a certain extent, that this would be a defense
to the offense of absence without leave. Did your research lead you to
look into those cases?

IDC: Yes, Your Honor.

DC: Yes, I’ve thoroughly researched that.
And the level to which that sexual harassment needs to go, to actual physical
threatening, rape, and other issues, is not present in this case.

MJ: Okay, and you also concur with that,
Lieutenant Biscoe? I’m not trying to question you about your unsworn
statement at all, but you are familiar with that area of the law that I’ve
been having this discourse with your counsel on?

(ACC and DC conferred.)

MJ: Do you want a few more minutes to discuss
this, counsel? I’ll be happy to recess----

DC: That will probably be best, Your Honor.

MJ: We’ll take a ten-minute recess at this
time. Will that be enough time?

DC: That should be, Your Honor.

MJ: Okay.

(The court-martial was recessed at 1416 hours,
26 September 1995, and was called back to order at 1433 hours, 26 September
1995. All parties were again present.)

MJ: Very well, counsel, I did grant the recess
at the time. Have you had enough time to discuss the situation with Lieutenant
Biscoe?

DC: Yes, Your Honor.

MJ: And, defense counsel, what’s your position
as to the providency of the pleas?

DC: We still believe the providency is good.

MJ: Very well, and I believe you told me
earlier that your investigation of the case and your discussion of all
the issues with the accused also led you to thoroughly explain to her the
affirmative defense of duress?

DC: That is correct, Your Honor.

MJ: And that it’s the defense’s position
that it does not apply and it was not the accused’s intention to raise
an affirmative defense of duress in her unsworn statement?

DC: Just to raise mitigating factors, Your
Honor.

The military judge then proceeded to discuss
this matter with appellant.

MJ: Oh very well, I understand. Lieutenant
Biscoe, I know that, from what your counsel has just advised, they’ve gone
over this with you in the past, but at this time let me just talk to you
for a minute about the defense of duress, okay?

ACC: Yes, sir.

MJ: And then I’ll have a few questions of you
afterwards. I’m not trying to cross-examine you on your unsworn statement;
I just want to have it clear in my mind that the defense of duress is not
applicable in the case. Is that okay?

ACC: Yes, sir.

MJ: And you just take your time and relax.
Lieutenant Biscoe, duress, as a defense, means compulsion or coercion.
It is causing another person to do something against her will by the use
of either physical force or psychological coercion. To be a defense,
the amount of duress used on the accused, whether physical or psychological,
must have been sufficient to cause a reasonable fear that if she did not
commit the offense of absence without leave, that she, or a member of her
immediate family, would be killed or suffer serious bodily injury.
The amount of coercion or force through any form of sexual harassment must
have been sufficient to have caused a person of normal strength and courage
to give in. The fear which caused the accused to commit the offense must
have been fear of death or serious bodily injury and not simply fear of
injury to reputation or property. The threat and resulting fear must have
continued throughout the commission of the offense--in this case it would
be the offense of AWOL.

If the accused had a reasonable chance to
avoid committing the offense without subjecting herself or members of her
family to the threatened danger, then the defense of duress does not exist.
A court in a situation involving the defense of duress would consider here
the opportunity or lack of opportunity the accused may have had to report
the threat to the authorities, and whether the accused had reasonably believed
that a report would protect her or her family from the threatened danger.

The burden is on the prosecution to establish
the accused’s guilt beyond reasonable doubt. Duress would be a complete
defense to this offense. And if a court were satisfied by legal and competent
evidence beyond a reasonable doubt that the accused did not act under duress,
then, of course, the defense of duress would not exist. Now do you understand
this?

ACC: Yes, sir.

MJ: And, of course, you have told me that
you suffered from sexual harassment prior to the time that you went AWOL,
and do you also assure the court that despite this, though, that the defense
of duress would not apply in this case, as I have explained that defense
to you?

ACC: Yes, sir.

MJ: Then you affirm what your counsel have
told me?

ACC: Yes, sir.

MJ: But you did want to call my attention to
all of the sexual harassment that you stated to the court that you suffered
at that time as a mitigating factor?

ACC: Yes, sir.

MJ: But it did not rise to the level of
duress as I have explained that term to you?

ACC: No.

MJ: Very well. Trial counsel, what’s you position
as to the providency of the plea at this time?

TC: Your Honor, the plea is provident. No further
questions are necessary at this time.

MJ: And I take it, defense counsel, you concur?

DC: That is correct, Your Honor.

MJ: Well, very well, I am also convinced that
the plea remains provident. I was convinced earlier that the plea was provident,
but I did feel it incumbent upon myself to, and this court, to conduct
this inquiry to insure that the affirmative defense of duress would not
apply. And I believe the record is adequate and certainly establishes such.

(Emphasis added.)

___ ___ ___

The precise question before this Court is whether
the military judge sufficiently questioned appellant about her sexual harassment
claim and its effect on her decision to go absent without leave. Appellant
contends that the military judge erred by "summarily dismiss[ing]"
a potential defense of duress "without establishing the factual basis
for [the] determination" that such a defense was "not viable."
Final Brief at 7. We disagree.

In United States v. Smith, 44 MJ at
392, this Court recently commented on the type of inquiry required in guilty-plea
cases concerning potential defenses.

We have held that this responsibility includes
the duty to explain to a military accused possible defenses that might
be raised as a result of his guilty-plea responses. United States v.
Smauley, 42 MJ 449, 450 (1995); United States v. Clark, 28 MJ
401, 405 (CMA 1989); seeUnited States v. Frye, 738 F.2d
196, 199 (7th Cir. 1984).

We conclude that Airman Smith’s guilty-plea
responses adequately reflect his understanding of the above defenses and
as a whole established sufficient facts which precluded these defenses
from applying in his case as a matter of law. SeeUnited
States v. Smauley, 42 MJ at 452.

(Emphasis added.)

For several reasons, we conclude that the military
judge made sufficient inquiry of appellant to preclude the application
of the defense of duress in this case. First, we note that the record of
trial clearly indicates that all parties to this court-martial were well
aware that sexual harassment might in certain circumstances constitute
a defense to unauthorized absence. SeegenerallyUnited
States v. Hullum, 15 MJ 261, 265-66 (CMA 1983); United States v.
Roberts, 15 MJ 106 (CMA 1983). Second, the requirements of a duress
defense were carefully explained to appellant by the military judge in
detail, and appellant acknowledged understanding the legal requirements
of this defense. SeeUnited States v. DeHart, 33 MJ 58, 61-62
(CMA 1991). Third, after a thorough explanation of this defense, appellant
and her defense counsel expressly rejected the applicability of this defense
in her case. SeeUnited States v. Roane, 43 MJ 93, 99 (1995).
Finally, appellant’s guilty-plea responses clearly imply that she did not
reasonably fear death or serious bodily injury for herself or her family
as a result of her alleged sexual harassment, and that Lt Col Chesnick
provided her a reasonable chance to avoid committing the charged offense
without exposure to any other danger. SeeUnited States v. Smith,
supra at 392-93. No further factual inquiry by the military judge
was required.

The decision of the United States Air Force
Court of Criminal Appeals is affirmed.

Chief Judge COX and Judges CRAWFORD and EFFRON
concur.

GIERKE, Judge (concurring):

This Court does not condone sexual harassment
under any circumstances. The record in this case, however, supports the
military judge’s conclusion that the sexual harassment did not rise to
the level of duress and did not constitute a defense to 2Lt Biscoe’s unauthorized
absence. Although the majority relies on United States v. Smith,
44 MJ 387 (1996), in which I dissented, the facts in this case are significantly
different from Smith. After reviewing the military judge’s inquiry
into the possibility of duress and 2Lt Biscoe’s responses, I am satisfied
that there is nothing in "substantial conflict" with 2Lt Biscoe’s
guilty pleas. SeeUnited States v. Smauley, 42 MJ 449, 450
(1995). Accordingly, I join the majority in affirming the decision of the
court below.